Welcome, Mark Mancini

Introducing a co-blogger

For the last six-odd years, Double Aspect has mostly been a one-man show. (I have at times wondered whether the blog’s name was inappropriate as a result, but no one seemed to mind.) While it has been my privilege to welcome guest posts from time to time, and to co-host a blogging symposium on The Dunsmuir Decade, I have mostly carried the ball myself. But today I am very pleased to introduce Mark Mancini as a co-blogger.

Mark has just finished his clerkship at the Federal Court of Canada (where I clerked too, once upon a time), and is headed to the University of Chicago for an LLM. But while he is still in the process of adding letters after his name, Mark is already a rising star in Canadian public law. His work has appeared in the UNB Law Journal, on Advocates for the Rule of Law, and, just today, on the Admin Law Blog. Mark has also published a couple of posts on Double Aspect ― with a post on the Khadr settlement last year, and, more recently, an excellent contribution to the Dunsmuir symposium. In short, Mark is very much someone to keep an eye on ― and now you can do so right here on Double Aspect.

I know that, like me, Mark is committed to serious thinking about the law, and that he takes his responsibilities towards both doctrine and la doctrine very seriously indeed. I am confident that with him on board, Double Aspect will be better positioned to discharge these responsibilities, and that its quality, as well as output, will improve noticeably. Welcome, Mark!

Remarks on Bill C-76

Freedom of expression issues in an electoral reform bill

Earlier today, I had the chance to address the House of Commons Standing Committee on Procedure and House Affairs, which is currently studying Bill C-76, a significant reform package for the Canada Elections Act. I am very grateful to the Committee for inviting me ― though I wish I’d been given more than just a few days to prepare ―, and also to its staff for making it possible for me to speak from an ocean and a continent away.

My remarks focused on the freedom of expression issues that C-76 fails to address or indeed amplifies in what I think is a dangerous quest to stop the “permanent campaign” ― dangerous because the only way to really stop the permanent campaign would be to impose permanent censorship on political debate. (Scott Reid, a Conservative member of the Committee asked me about this, and I said that I hope that Parliament will not go that far ― but I am worried that accepting the principle of regulating political speech outside of the electoral campaign period, we will not stop at just a couple of months, as C-76 does, for now.) More generally, my point was that members of the civil society ― whom election law denigrates by describing them as “third parties” ― should be heard, even at election time.

Here are my remarks. (The Chair’s reference to a miracle is due to some technical issues that prevented me from connecting to the meeting on time… but all’s well that ends well!)

Jousting over Jurisdiction

A summary of the Supreme Court judges’ competing views on how to assess the validity of delegated legisation

The Supreme Court’s decision in West Fraser Mills Ltd v British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, is, as Robert Leckey observed on Twitter, “[o]ne for the judicial-review nerds or junkies”. But it is also much more than that, because it a chilling reminder of what I recently called the Supreme Court’s “pro-regulatory bias“, and its resulting complacency in the face of administrative lawlessness. As I will explain shortly, there are four different opinions in the case, dealing with two different issues. In this post, I mostly review these opinions, quoting from them at some length. This will be quite long, I am afraid, due to the amount of ground to cover and to the importance of getting a sense of the judges’ thinking. I will offer my own comments separately.

The case arose out of a tragic accident. On land owned by West Fraser, a worker employed by an independent contractor “was fatally struck by a rotting tree”. [1] The provincial Workers’ Compensation Board fined West Fraser, for failing to comply with a regulation (that it had itself made in purported exercise of its authority under s 225(1) of the British Columbia Workers Compensation Act to “make regulations [it] considers necessary or advisable in relation to occupational health and safety and occupational environment”) requiring “[t]he owner of a forestry operation” to “ensure that all activities of the forestry operation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to the Board.” As basis for its power to impose the fine, the Board relied on s 196(1) of the Workers Compensation Act, which authorized it to “impose on an employer an administrative penalty” for, among other things, failure to comply with the relevant regulations.

West Fraser challenged the legality of this fine on two grounds. First, it argued that the regulation with which it was said not to have complied was ultra vires the Board ― that was not authorized by the Workers Compensation Act. On this issue, the Supreme Court split 8-1: the majority upholds the regulation, though Justice Brown takes a very different approach from the majority judgment authored by Chief Justice McLachlin, and Justice Rowe is at best ambivalent; Justice Côté dissents. Second, West Fraser argued that, even if the regulation was valid, it could not be fined for breaching it, since within the meaning of the Workers Compensation Act it was, in relation to the victim, an “owner” (of the workplace), and not an “employer”. On this point (and, therefore, in the result), Justices Brown and Rowe agree with Justice Côté’s dissent.

* * *

For the Chief Justice, the approach to the question whether a regulation was authorized by the statute pursuant to which it was purportedly made is identical to that followed on any other “judicial review of the exercise of delegated administrative powers”, [8] and set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. Given the Board’s regulatory expertise, the issue is whether the impugned regulation “represents a reasonable exercise of the Board’s delegated regulatory authority”. [10] While “some” ― that would be the Chief Justice’s colleagues who disagree with this approach ― argue that the issue if one of jurisdiction, and thus under Dunsmuir the correctness standard applies, the Chief Justice takes the position that

Where the statute confers a broad power on a board to determine what regulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in the traditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to those goals. [23]

In this case, the “delegated regulatory authority” is vast: “the Legislature indicated it wanted the Board to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety”. [10] This “delegation of power to the Board could not be broader” [10] ― indeed, it is “unrestricted” [11] or, at least, it authorizes “any regulation that may reasonably be construed to be related to workplace health and safety”. [11]

This might be enough to uphold the regulation on the Chief Justice’s approach ― but Justice Côté, as we shall see, forces her to elaborate. The Chief Justice insists that the regulation at issue is both consistent with the purpose and “fits with other provisions of” [14] the Workers Compensation Act. And the Chief Justice invokes “two additional external contextual factors” . [19] For one thing, the impugned regulation was a “response to a concern in the province about the growing rate of workplace fatalities in the forestry sector”, and thus “a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently”. [20] For another, the Regulation is a logical extension of the owners’ existing duties. In short, even on a correctness standard, “the Regulation plainly falls within the broad authority granted” to the Board. [23]

The dissenting judges disagree with the Chief Justice’s approach. Justice Côté delivers the most sustained rejoinder. She insists that the question “whether the Board has the authority to adopt a regulation of this nature at all” “is jurisdictional in nature” [56] and so must be reviewed on a correctness standard: “[t]he Board … possesses only the authority that is delegated to it by statute”, [56] and this authority either extends to the making of the Regulation, or it doesn’t. Indeed, since it “is an unelected institution”, it is important to “ensure[] that the Board … does not aggrandize its regulation-making power against the wishes of the province’s elected representatives”. [66] Besides, unlike when it is adjudicating a dispute, an administrative decision-maker determining the scope of its regulatory authority neither possesses expertise superior to that of the judiciary, nor brings to bear policy considerations or factual understanding unavailable to the courts. And anyway, reasonableness review, which is supposed by focused on the administrative decision-maker’s reasons, can hardly be applied to rule-making decisions which the regulators need not explain: “[i]f a court does not know the reasons justifying a decision or an exercise of jurisdiction, how can it afford any deference?” [69] Justice Côté adds that the Chief Justice’s “rationale largely escapes [her]”, and her “basis for applying the reasonableness standard remains largely unexplained”. [70] The Chief Justice, she says, “has offered almost no analysis on a question that will prove to be important in subsequent cases”. [74] These are fighting words by the usually demure standards of the Supreme Court of Canada.

Justice Côté also disagrees with the Chief Justice on the merits. In her view, the impugned Regulation “impermissibly conflates the duties of owners and employers in the context of a statutory scheme that sets out separate and defined obligations for” each. [75] Consistently with the statutory purpose, set out in s 107(2)(e) of the Workers Compensation Act, to share out responsibility for workplace safety “to the extent of each party’s authority and ability”, the employers’ duties have to do with their relationship with the workers; the owners’, with the employers. They are “separate silos of responsibility”, each actor being assigned that part of the overall task of protecting workplace safety that it is “in the best position to assume”. [83] The impugned Regulation forces owners to micro-manage workers, taking up a role which the Workers Compensation Act instead assigns to employers, and is thus inconsistent with the statutory scheme and purpose. Although its powers are broad, the Board cannot do such a thing: “[o]therwise, there would be no functional limit on the Board’s ability to enact regulations … in some way connected to some abstract vision of occupational health and safety”. [87] Regardless of what might have prompted the Board to regulate in the way it did, it lacked the authority to do it.

Justice Brown also insists on correctness review for the validity of the Regulation. The matter, in his view too, is one of jurisdiction, and Dunsmuir requires the courts to provide their own answers to truly jurisdictional questions. Like Justice Côté, Justice Brown faults the Chief Justice for her “inadequate” response that “elide[s]” the issue. [113] For Justice Brown,

a central judicial function is to ensure that statutory delegates such as the Board act only within the bounds of authority granted to them by the legislature. … Public power must always be authorized by law. It follows that no statutory delegate, in enacting subordinate legislation (that is, in making law), may ever exceed its authority. The rule of law can tolerate no departure from this principle. [116; emphasis in the original]

The substantive reasonableness of a regulation, by contrast, is not a matter for the courts. Provided that the regulation was authorized by statute and not made oppressively or in bad faith, the courts should not interfere. All that said, on the merits, Justice Brown concurs with the Chief Justice. In a single sentence, he concludes that the grant of regulatory authority in the Workers Compensation Act “is sufficiently broad to support” [121] the impugned Regulation.

For his part Justice Rowe professes to “concur with [the Chief Justice’s] analysis”, [128] but only with the proviso that it be split into two parts: first a jurisdictional analysis (which presumably is to be approached on a correctness standard, following Dunsmuir); and then “a substantive inquiry into the exercise of the grant of authority” [127] and its consistency with the purpose of the statute. While Justice Rowe is of the view that the Chief Justice undertakes both of these steps, the second, as I indicated above, is largely if not entirely a response to Justice Côté. Justice Rowe’s agreement with the Chief Justice is thus more apparent than real. He also makes a point of hitting out at “one of the myths of expertise that now exist in administrative law”, [129] arguing that “‘working day to day'” to apply a statutory regime “does not” “give [administrative decision-makers] greater insight into statutory interpretation, including the scope of jurisdiction, which is a matter of legal analysis”. [129]

* * *

The second issue, recall, is whether the Board was entitled to fine West Fraser under a statutory provision that authorizes the imposition of penalties on “employers” who do not comply with regulations. Here, there is no overt dispute about the standard of review: the Chief Justice finds, and Justice Côté (with whom Justices Brown and Rowe agree) “assume[s]”, [95] that provincial legislation imposes patent unreasonableness as the applicable standard.

The Chief Justice finds that to read “employer” as extending to an owner is not patently unreasonable. To be sure, the alternative opinion is “plausible”, [37] but there are also arguments in support of the “broader” view, “one more supportive of the goal of promoting safety and the overall operation of the scheme”. [38] Since West Fraser “employed persons to carry out the duties imposed by” the Regulation, [38] ― and indeed it had, to being a corporation ― it was an “employer” as well as an “owner”. Moreover, “[t]he general scheme of the [Workers Compensation] Act is to hold both owners and employers responsible in an overlapping and cooperative way for ensuring worksite safety”. [43] Since West Fraser “had sufficient knowledge and control over the worksite in question to render it responsible for the safety of the worksite”, [47] penalizing for the safety shortcomings was reasonable.

Justice Côté sees things differently. Patent unreasonableness is a deferential standard of review, “but there are some interpretations of law that are so far beyond the pale that they cannot be permitted to stand”. [107] The statute carefully distinguishes the roles of owners and employers, and it is impossible to read a provision that only applies to one of these roles as applying to the other too. Although the same entity may play both roles in a given situation, the penalty applicable to the breach of obligations associated with one is not applicable to the breach of those associate with the other. When the legislature wanted to speak more broadly, it used the word “person” rather than the specific terms “owner” or “employer”; the Chief Justice’s “reasoning in this case effectively rewrites” [102] the Workers Compensation Act, undoing legislative choices to uphold “an unbounded interpretation” [104] by the administrative decision-maker. It is not enough, Justice Côté adds, to point to the general purpose of the statute to uphold this interpretation:

The legislature may have intended to pursue that purpose, but it did so through limited means … To hold that any interpretation that the Tribunal views as advancing the goal of health and safety can survive patent unreasonableness scrutiny would render judicial review meaningless. [107]

* * *

There is a lot to chew on here, and I will mostly do so in two upcoming posts. In the first one, I will focus on the substance of the case ― the various views on the proper approach to determining the validity of a regulation, the validity of the Regulation in this case, and the reasonableness or otherwise of the fine imposed by the regulator. (Spoiler alert: to, I suspect, nobody’s surprise, I mostly agree with Justice Côté.) In the second post, I will take a step back, and discuss the broader issues having to do with the relationship between the Supreme Court and the administrative state.

Politics in, and of, Law Schools

That legal education is tied up with politics is no excuse for indoctrination or ideological homogeneity

In an op-ed in The Globe and Mail Lisa Kerr and Lisa Kelly criticize “[c]alls for a return to … a legal education free of politics”, which they say amounts to “[s]tripping law of context”. Legal education, they insist, is necessarily, and properly, political. It is not just about legal doctrine, but also about “the complex relationship between legal principles and societal values”, as well as “history, culture, economics, and political economy”. I do not disagree with most of what they say on this point, so far as it goes. But I have a strong impression that Professors Kerr and Kelly, as well as their enthusiastic supporters in the Canadian legal academic corner of the twitterverse, elide crucial distinctions, and fail to address important questions that arise is their claim about the relationship between law, and especially legal education, and politics is accepted.

One claim in Professors Kerr and Kelly’s op-ed which I would not endorse without qualificaion is “that law and politics are not distinct domains”. To be sure, as I argued in one of my early posts here, “legal theory … is different from scientific theory, because it is in some measure argument [that] involves values, and hence ideology”. (Some of the things I said in that post now strike me as overstated, but I stand by this claim, and the post’s general tenor.) And it’s not just theory. As I wrote elsewhere, while Canadian courts is sometimes contrasted with American law as being less ideological, this is a mistake; Canadian judges are ideological, though they tend to share an ideology, and observes of Canadian courts believe, or pretend, that it is no ideology at all. Yet for all that, I think it would be a mistake to conclude that law and politics are wholly indistinct. Politics (in the sense of ideology, not necessarily partisanship) influences law, but it is not all there is to law. Professors Kerr and Kelly disparage “formalism”, but the law’s forms and procedures are important and valuable. “Due process of law” is not the same thing as political process, or the court of public opinion. I am not sure whether Professors Kerr and Kelly mean to suggest otherwise, but it would have been better had their op-ed not been open to such an interpretation.

I am also quite skeptical of the claim that Canadian law professors teach students not only law but also “history, culture, economics, and political economy”. With respect to my colleagues, how many of them master these subjects at even an undergraduate level?How many regularly read even, say, blogs written by historians or economists ― let alone scholarship? As readers who have followed my occasional musings on the “empirical turn” in constitutional law will know, it’s not that I am against the law being informed by these ― and many other disciplines; quite the contrary. But I am also skeptical about the capacity of the legal profession ― including the academy, as well as the bar and the bench ― to carry out the immense work that the “empirical turn” requires. Canadian law schools are several hundred Richard Posners short of offering the sort of interdisciplinary teaching that Professors Kerr and Kelly claim for them.

Be that as it may, as I said above, what worries me more is what Professors Kerr and Kelly do not say. First, as Michael Plaxton points out, there is a difference ― which Professors Kerr and Kelly elide ― between “drawing attention to political values” that permeate the law, and “adopting any particular political view, or imposing one on students”. One can expose the law’s politics and explain its context without necessarily arguing that the law is good or bad as a result. Now, I think that this distinction can only be taken so far. Given the limits on the time available to teach any subject, the choice of readings one assigns, or issues one emphasizes, is in part influenced by what one finds interesting and important, and one’s politics help shape those perceptions. Still, that’s not an excuse for giving up on even-handedness, or on broadening the issues one raises beyond one’s own interests and preoccupations.

Another important distinction is that between the positions of individual educators and educational institutions vis-à-vis politics. Professors Kerr and Kelly elide this distinction too, speaking of the way “we … teach law” and “the role of a law school” as if they were the same. They are not. Individual professors will, unavoidably, bring their particular political orientations to their teaching. They have a responsibility to strive, nevertheless, to fairly present views and concerns with which they disagree, but there are limits to how well individuals can discharge this responsibility, both due to the imperfections of the human nature and to the practical constraints I have already mentioned. Professors’ duty to create an environment where students who disagree with them feel free to do so is more absolute, but again, I am afraid that there are limits to what one can do. Ultimately, the professor gets the last word in a classroom discussion ― though the last word should often be a reminder that disagreement is welcome.

Law schools, as institutions, are subject to different constraints. Unlike individual professors, they are not entitled to their own political agendas. Individuals can only go so far in resisting the influence of their pre-existing commitments on their teaching. But law schools should have no pre-existing political commitments to resist. On the contrary, given the inevitability of a certain politicization of the teaching of individual professors, law schools should try to counteract this politicization by ensuring a certain degree of ideological heterogeneity among their staff, so that students are exposed to a variety of perspectives during the course of their studies. As Emmett Macfarlane points out, concerns about the role of politics in legal education have to do with “homogenizing attitudes” at (some) law schools that present them as committed to specific political orientations, so that other views would be unwelcome or at best devalued there.

One response to this that I have seen is to say that professors do not really change their students views. I think this is beside the point. For one thing, I don’t think that it’s necessarily improper for professors to change their students’ minds. If the change results from the students’ free assessment of arguments on both sides of an issue fairly presented by the professor, it’s a good thing, not a bad one. But conversely, even if  professors who set out to indoctrinate their students, or take a one-sided or authoritarian approach out of sheer carelessness, do not succeed at changing the students’ opinions, they are still causing harm. As Ilya Somin observed in a recent discussion of Keith Whittington’s new book on freedom of expression in universities, and as Matt Harringon pointed out in response to Professors Kerr and Kelly, students respond to such professors by hiding their true opinions, which harms the quality of classroom discussion. As Jonathan Haidt often reminds us, this leaves the holders of the majority opinions quite unprepared to argue against contrary views when they are confronted with them ― as will inevitably happen in the legal world, in particular.

 

So while I take Professors Kerr and Kelly’s point that the teaching of law is inevitably political, it is only true in certain ways and to some extent. Good legal educators do not shy away from discussing values, but they try to present more than their own value-laden perspective on the law, and do not seek to impose their own on their students. And, knowing that these attempts are bound to succeed only imperfectly, good law schools try to ensure that students are given opportunities to learn from professors whose political commitments are not homogeneous. I hasten to add that I strongly suspect that any legislative remedies for real or alleged failures of law schools and their faculties to live up to these commitments would be worse than the disease. But that just means that legal educators have to work very hard at it ― no one else can help them.

A “non-constitutional” take on the Canada Summer Jobs Program (by guest blogger Kathryn Chan)

The Trudeau government’s administration of the Canada Summer Jobs Program has attracted a great deal of criticism in recent weeks.  Controversy swirls around the “detestable attestation”, which requires groups that apply for program funding to attest that both the job [for which they plan to use the funding] and the group’s core mandate respect individual human rights in Canada.  The attestation specifies that these rights include “the values underlying the Canadian Charter of Rights and Freedoms” as well as reproductive rights and the right to be free from discrimination.

Underlying the poor drafting and poor communications, the issue is whether the Trudeau government either can or should require program applicants to sign an attestation that may conflict with their religious views. Commentators have expressed very strong opinions on the issue, with the weight of the legal commentary pivoting upon divergent views of the scope of the Charter’s equality and religious freedom provisions. Constitutional law principles are likely to be determinative of the question of whether the government can make signing the attestation a condition of its summer job funding. However, I suggest that as we consider whether government should use the attestation in this way, we also have regard to “non-constitutional” legal principles and debates.  In particular, I suggest we might gain a deeper understanding of the contest over the Canada Summer Jobs Program by considering the law’s approach to regulating charities, and the manner in which it navigates the tension between the respective spheres of individual project pursuit and collective project pursuit.

The majority of the organizations that object to the attestation are religious charities.  By virtue of the legal criteria of charitable status, we may assume that they are non-profit organizations constituted to advance the tenets of a religious faith, either directly (by spiritual teaching), or indirectly (by assisting the needy in accordance with their religious beliefs).   They must also operate “for the public benefit” within the meaning of the common law.  Provided that religious organizations meet these criteria, the common law has long held that they are entitled to the advantages of charitable status: perpetual duration, the protection of the Crown, and (since the early 20th century) a variety of tax benefits.  Religious and other charities are also subject to special burdens, including stringent duties with respect to the administration of charity property, and regulatory and reporting duties under the federal Income Tax Act.

The common law has always pursued two contradictory goals in defining and supervising the entities that are entitled to this special treatment.  The first is to enable benevolent property owners to improve the world in accordance with their own individual vision.  This goal – of protecting conditions of individual autonomy for the founders and administrators of charitable projects – is strongly associated with the private law sphere.  As Nigel Simmonds has explained, it expresses the deep value that liberal democracies place upon individual project pursuit – “the freedom of the individual to formulate and execute his or her own plans and projects without regard to the value or disvalue placed upon the content of those plans and projects by others”.

The common law’s second goal with respect to charities is in tension with the first – it is to set limits on the autonomy of those who found and administer charitable projects in order to ensure conformity with a more collective ideal of the good.  This is a goal strongly associated with the public law sphere. It expresses (again in Simmonds’ terms) the deep value that liberal democracies place upon collective project pursuit – “our collective freedom and responsibility to determine, through appropriate mechanisms, the broad structural features of our own society.”

One way that liberal democracies deal with their simultaneous valuation of individual and collective project pursuit is to delineate spaces where each of these forms of project pursuit dominates. For example, a person’s navigation of an intimate relationship is understood to be an individual project, where the law’s priority is generally that individuals be able to author their own life.  A government’s decision to impose a tax for the national defence, by contrast, is understood to be a collective project, which must be governed according to “public law values” such as fairness, equality and rationality.

The difficulty is that many projects sit somewhere along the expansive spectrum between the opposing poles of individual and collective project pursuit, making it difficult to determine whether autonomy or “public law values” should prevail.   Charitable projects, I have argued elsewhere, sit right in the middle of this spectrum, where the regulatory impulses of public law and private law bear down on them with comparable force. Religious charitable projects occupy an even more complex position on the spectrum, since their religious freedom is linked both to our collective project of rights protection and to individual and community autonomy.  Charity law has historically balanced the opposing impulses of public and private law with tools such as the definition of charity and the public benefit rule (see also Professor Adam Parachin’s work on these themes). Nevertheless, the equilibrium between these impulses changes over time.  And so a Catholic adoption agency that would, at one time, clearly have been considered an individual project, may come to be treated as a collective project in a world where government and charitable programs  are intertwined.

There are no easy answers to the question of when the government should stop treating projects as individual projects and start treating them as collective ones.  The question may arise with for-profit projects as well as not-for-profit ones. However, both ancient and recent history suggest that charities are particularly vulnerable to being ‘co-opted’ by government through funding or other mechanisms that nudge charities towards alignment with the government’s substantive goals. We should be wary of such alignment, I have argued elsewhere, religious freedom or not. First, such alignment or co-optation may threaten the voluntary spirit that typically characterizes charitable activity and has historically been understood to be its greatest strength.  Second, even where the alignment appears benign or well-intended, it risks becoming part of a broader pattern of the governmental stifling of dissent.  Finally, charities that cannot accept being aligned with the government’s agenda are likely to withdraw from their relationships with government, distancing themselves from the regulatory oversight that is designed to protect the public.

The debate over the Canada Summer Jobs grant program is unlikely to be easily resolved, and is almost certain to rear its head in other factual contexts.  Constitutional law principles may ultimately determine whether government can require applicants for funding programs to align with government policies in the manner of the attestation.  However, as government ponders how it should manage its relationship with religious organizations, it should also consider the centuries-old law of charities, and the principles it developed to regulate projects that were neither purely “individual” nor “collective”.

 

Chan on the Summer Jobs Programme

Announcing a guest post on the “attestation” applicants to the federal government’s Summer Jobs Programme must provide

This is just a note to announce a forthcoming guest post by Kathryn Chan on the “attestation” that the federal government requires any would-be recipient of funding under its Summer Jobs Programme to provide. As explained in my own recent post about it, businesses and non-profits that wish to apply for funding to support their hiring of young Canadians for summer jobs need to tell the government that their “core mandate” is consistent with a raft of Charter and “other” rights, as well as Charter values. I was sharply critical of this requirement in my post. Prof. Chan, who teaches and writes about public law and charity law at the University of Victoria, brings her own perspective on this issue, which I think will add something valuable to the debate. I am looking forward to her post.

Canadian Events in January

Announcing talks in Montreal and Toronto

This is just a quick announcement that I will be giving a couple of talks in Canada next month. Leaving the long and sunny days of New Zealand’s summer ― and this year, unlike last, at appears that we are having an actual summer ― for the Canadian winter is a dubious pleasure, but it’s for a good cause.

The first one will be on January 10, at McGill, I’ll be speaking about ― and against ― the “Statement of Principles” undertaking to promote equality, diversity, and inclusion that Ontario lawyers are now required to create. I have written a good deal about the “Statement of Principles” on this blog and elsewhere (explaining the reach and lawlessness of the requirement and, more specifically, its illegality; denouncing its violation of the freedom of conscience; and criticizing the vision of the legal profession behind it). I am looking forward to making my case to students and anyone else who might care to hear me. I am grateful to Runnymede McGill for giving me the chance. The talk will be at 17:30 at NCDH at 201.

The second event in which I will take part will be Runnymede Society’s Law and Freedom Conference at the University of Toronto’s Hart House, on January 12-13. I will be speaking on the 13, presenting a paper on “The Rule of Law All the Way Up”, which will argue that the Canadian constitution, which is supposed, including by its own terms, to be our Supreme Law, is all too often not treated by people both on the left and on the right as law at all, but rather as a set of merely political commitments. Justice Bradley Miller of the Court of Appeal for Ontario will comment, which is a great honour for me (and, truth be told, a source of some apprehension!). Our session is scheduled for 10:30, but there will be plenty of other interesting stuff there ― perhaps especially Justice Peter Lauwers’, also of the Court of Appeal for Ontario, Friday keynote on “The Mischief of Charter Values”, the subject of a much-discussed opinion he co-authored with Justice Miller in Gehl v. Canada (Attorney General), 2017 ONCA 319.

If you are able to make it to one of these events, please say hello! It’s always fun to meet readers in real life.